TANEY COURT (1836–1864)

The Supreme Court under Chief Justice roger b. taney (1836–1864) has not been a favorite among historians, perhaps because it defies easy generalization. There were few great constitutional moments and no dramatic law-making decisions comparable to those handed down by the marshall court. The fifteen Justices who served with Taney (not counting abraham lincoln'scivil war appointees) varied immensely in ability—from joseph story of Massachusetts who was the leading scholar on the bench until his death in 1845 to john mckinley of Alabama whose twenty-five years on the Court left barely a trace. Institutional unity and efficiency were often disrupted by abrasive personalities like henry baldwin (who became mentally unstable shortly after his appointment in 1830) and peter v. daniel (whose passion for states ' rights drove him into chronic dissent). Division was constant and bitter as the Justices disagreed openly over corporation, banking, and slavery questions—all of which tended to be seen from a sectional point of view. Fortunately for the ongoing work of the Court, most of its members shared a respect for the Constitution and had a common commitment to economic progress and property rights that cut across ideological and sectional differences. All were Democrats, too, except Story, john mclean, and benjamin r. curtis. Most of the Court respected the Chief Justice—whose legal mind was of a high order—and responded well to his patient, democratic style of leadership. Still the Court under Taney did not quite cohere. There was no "leading mind," as daniel webster complained, and no clear-cut doctrinal unity.

Clearly the Taney Court was not the Marshall Court—but then again it was not the age of Marshall. The society that conditioned the Taney Court and defined the perimeters within which it made law was democratic in its politics, pluralistic in social composition, divided in ideology, and shaped by capitalist forces which increasingly sought freedom from traditional governmental restraints. Most threatening to judicial unity, because it was directly reflected in the opinions of the Court, was the intensification of sectional rivalry. As northern states committed themselves to commerce and manufacturing, they came to see themselves—taking their cultural cues from the abolitionists—as a section united in defense of liberty and freedom. The South found ideological conservatism an ideal umbrella for an expansive social-economic system based on cotton and organized around plantation slavery. As the sections competed for political power and control of the new West, each came to think of itself as the last best hope of mankind. And each insisted that the Constitution accommodate its policy preferences—a demand that the Supreme Court could satisfy only by compromising doctrinal purity and finally could not satisfy at all.

In short, the political and economic problems of the new age became constitutional problems just as alexis de tocqueville had said they would. Whether the Supreme Court would be the primary agency to resolve those problems was, of course, a matter of debate. andrew jackson, armed with a mandate from the people, did not believe that the Court had a monopoly of constitutional wisdom. Newly organized political parties stood ready to dispute judicial decisions that offended their constituencies. States armed with john c. calhoun's theory of nullification insisted that they, not the Court, had the final word on the Constitution. Accordingly, the margin of judicial error was drastically reduced. The Court was obliged to make the Constitution of 1787 work for a new age; the high nationalism of the Marshall Court, along with its Augustan style of judging, would have to be toned down. Changes would have to come. The question—and it was as yet a new one in American constitutional law—was whether they could be made without disrupting the continuity upon which the authority of the law and the prestige of the Court rested.

The moment of testing came quickly. Facing the Court in its 1837 term were three great constitutional questions dealing with state banking, the commerce clause, and corporate contracts. Each had been argued before the Marshall Court and each involved a question of federalism which pitted new historical circumstances against a precedent from the Marshall period. The Court's decisions in these cases would set the constitutional tone for the new age.

In briscoe v. bank of kentucky the challenge was simple and straightforward. The issue was whether notes issued by the state-owned Commonwealth Bank were prohibited by Article I, section 10, of the Constitution, which prevented states from issuing bills of credit. The Marshall Court had ruled broadly against state bills of credit in craig v. missouri (1830), but the new Jacksonian majority ruled for the state bank. Justice McLean's opinion paid deference to legal continuity by distinguishing Briscoe from Craig, but political and economic expediency controlled the decision as Story's bitter dissent made clear. The fact was that, after the demise of the second Bank of the United States, state bank notes were the main currency of the country. To rule against the bank would put such notes in jeopardy, a risk the new Court refused to take.

Policy considerations of a states' rights nature also overwhelmed doctrinal consistency in commerce clause litigation, the Court's primary means of drawing the line between national and state power. Marshall's opinion in gibbons v. ogden (1824) had conceded vast power over interstate commerce to Congress, although the Court had not gone so far as to rule that national power automatically excluded states from passing laws touching foreign and interstate commerce. The new age needed a flexible interpretation of the commerce clause that would please states' rights forces in both the North and the South and at the same time encourage the growth of a national market.

In mayor of new york v. miln, the second of the trio of great cases in 1837, the Court struggled toward such a reinterpretation. A New York law required masters of all vessels arriving at the port of New York to make bond that none of their passengers should become wards of the city. The practical need for such a law seemed clear enough; the question was whether it encroached unconstitutionally on federal power over interstate commerce as laid out in the Gibbons decision. The Chief Justice assigned the opinion to Justice smith thompson who was prepared to justify the New York law as a police regulation and as a legitimate exercise of concurrent commerce power. His narrow definition of statepolicepower displeased some of his brethren, however, and even more so his position on concurrent power. When he refused to compromise, the opinion was reassigned to philip p. barbour, who upheld the state regulation as a valid exercise of state police power. Barbour's contention that police power was "unqualified and exclusive" far exceeded anything that precedent could justify, however, as Story pointed out in his dissent. Indeed, Barbour's opinion, so far as it ruled that states could regulate interstate passengers, went beyond the position agreed upon in conference and lacked the full concurrence of a majority.

The Miln case settled little except that the New York regulation was constitutional. The Court remained sharply divided over the basic questions: whether congressional power over foreign and interstate commerce was exclusive of the states or concurrent with them and, if it was concurrent, how much congressional action would be necessary to sustain national predominance. The doctrine of state police power had taken a tentative step toward maturity, but its relation to the commerce clause remained unsettled. That the states reserved some power to legislate for the health and welfare of their citizens seemed clear enough, but to establish an enclave of state power prior to, outside the scope of, and superior to powers delegated explicitly to Congress was to beg, not settle the crucial constitutional question.

The uncertainty regarding the questions generated by Miln continued throughout the 1840s in such cases as groves v. slaughter (1841) where the Court refused to rule on whether the provision of the Mississippi Constitution of 1832 touching the interstate slave trade was a violation of national commerce power. Confusion increased in the license cases (1847) and the passenger cases (1849), which dealt with state regulation of alcohol and immigration respectively. The Justices upheld state authority in the first and denied it in the second, but in neither did they clarify the relation of state police power to federal authority over interstate commerce.

Not until cooley v. board of wardens (1852), which considered the constitutionality of a Pennsylvania law regulating pilotage in the port of Philadelphia, did the Court supply guidelines for commerce clause litigation. Congress had twice legislated on pilotage, but in neither case was there any conflict with the Pennsylvania law. The issue came, therefore, precisely and unavoidably to focus on exclusive power versus concurrent power: whether the constitutional grant of commerce power to Congress automatically prohibited state regulation of commerce or whether the states could regulate commerce as long as such regulations did not actually conflict with congressional legislation.

Justice Curtis's majority opinion upheld the state law and in the process salvaged some doctrinal regularity. Starting from the undeniable premise that the commerce power granted to Congress did not expressly exclude the states from exercising authority over interstate commerce, he ruled that exclusive congressional jurisdiction obtained only when the subject matter itself required it. The subjects of commerce, however, were vast and varied and did not require blanket exclusiveness. Some matters, he said, needed a "single uniform rule, operating equally on the commerce of the United States in every port." Some just as certainly admitted of local regulation. Power, in other words, followed function: if the subject matter required uniform regulation, the power belonged to Congress; if it did not, the states might regulate it. State police power remained to be settled, but the pressure to do so was lessened because the concurrent commerce power of the states was now clearly recognized.

selective exclusiveness, as the Court's approach in Cooley came to be called, was not a certain and final answer to the problem of allocating commerce power between the national government and the states, however. The rule was clear enough but how to apply it was not, which is to say that Curtis gave no guidelines for determining which aspects of commerce required uniform regulation or which permitted diversity. What was clear was that the Court had retreated from the constitutional formalism of the Marshall period. The opinion was short, only ten pages long; it made no reference to precedent, not even Gibbons. The Justices now willed to do what they had previously done unwillingly: they decided cases without a definitive pronouncement of doctrine. The important difference in Cooley was that the Court devised a rule of thumb recognizing the judicial interest-balancing that previously had been carried on covertly in the name of formal distinctions. Ordered process, not logical categories, would be the new order of the day.

The Court's flexibility also signaled a shift of power in the direction of the states. The constitutional legacy of the Marshall Court had been altered to fit Jacksonian priorities. Still, national authority had not been destroyed. The Taney Court had refused to extend the nationalist principles of mcculloch v. maryland (1819) and Gibbons, to be sure, but the principles stood. The Court's new federalism did not rest on new states' rights constitutional doctrine. Neither did the new federalism threaten economic growth, as conservatives had predicted. Agrarian capitalism, for example, fared as well under the Taney Court as it had under its predecessor. The Justices did sometimes resist the most exorbitant demands of land speculators, and occasionally a dissenting Justice spoke for the little man as did Daniel in Arguello v. United States (1855). But the majority took their cue from fletcher v. peck (1810), which is to say that plungers in the land market mostly got free rein, as for example in Cervantes v. United States (1854) and Fremont v. United States (1855). That slaveholding agrarian capitalists were to benefit from this judicial largess was clear from the decision in dred scott v. sandford (1857).

The Court's promotion of commercial-industrial-corporate capitalism proved more difficult because of the sectional disagreements among the Justices. But there is no doubt that the Taney Court served as a catalyst for the release of American entrepreneurial energies. Its plan for a democratic, nonmonopolistic capitalism, Jacksonian style, was unveiled in charles river bridge v. warren bridge, the last of the three landmark decisions of the 1837 term. Here the question was whether the toll-free Warren Bridge, chartered and built in 1828 a few hundred feet from the Charles River Bridge, destroyed the property rights of the old bridge, in violation of its charter as protected by dartmouth college v. woodward (1819). The difficulty was that the charter of 1785, although granting the Charles River Bridge the right to collect tolls, had not explicitly granted a monopoly. The fate of the old bridge depended, therefore, on the willingness of the Taney Court to extend the principle of Dartmouth College by implication.

Taney, who spoke for the new Jacksonian majority on the Court, refused to do so. The Chief Justice agreed that "the rights of private property are sacredly guarded," but he insisted "that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation." The Court should not venture into the no-man's land of inference and construction when the public interest rested in the balance, Taney argued. He cleverly supported this position by citing Marshall's opinion in providence bank v. billings (1830). And the public interest, as Taney saw it, lay in extending equality of economic opportunity. "Modern science," he said with an eye on new railroad corporations, would be throttled and transportation set back to the last century if turnpike and canal companies could turn charter rights into monopoly grants.

The Bridge decision, like the Court's decisions in banking and commerce, revealed a distinct instrumentalist tone as well as a new tolerance for state legislative discretion. The Court also showed its preference for dynamic over static capital. Still, property rights were not generally threatened. To be sure, in west river bridge company v. dix (1848) the Court recognized the power of state legislatures to take property for public purposes with just compensation, but conservatives themselves were willing to recognize that power. The Court also took a liberal view of state debtor's relief legislation, especially laws applying to mortgages for land, but even here the Court could claim the Marshall Court's decision in ogden v. saunders (1827) as its guide. There was no doubt, on the other hand, as bronson v. kinzie (1843) showed, that state relief laws that impaired substantial contractual rights would not be tolerated.

Corporate property also remained secure under the Bridge ruling. Indeed, corporate expansion was strongly encouraged by the Taney Court despite the resistance of some of the southern agrarian Justices. After 1837 the Court consistently refused to extend charter rights by implication, but it also upheld corporate charters that explicitly granted monopoly rights even though in some cases such rights appeared hostile to community interest. Corporations also greatly profited from bank of augusta v. earle (1839), which raised the question whether corporations chartered in one state could do business in another. Taney conceded that the legislature could prohibit foreign corporations from doing business in the state and some such laws were subsequently passed. But such prohibitions, he went on to say, had to be explicit; practically speaking, this limitation assured corporations the right to operate across state lines. Hardly less important to corporate expansion was Louisville Railroad v. Letson (1844) which held that corporations could be considered citizens of the states in which they were chartered for purposes of diversity jurisdiction—Thus removing the increasingly unworkable fiction created in Bank of United States v. Deveaux (1809) and assuring corporate access to federal courts where the bias in favor of local interests would be minimized.

The Court's promotion of capitalism showed the basic continuity between the Marshall and Taney periods and the fact that antebellum law followed the contours of economic development. Acknowledgment of this continuity, however, should not obscure the real changes in constitutional federalism as the Taney Court deferred more to state power and legislative discretion. Overall the Court spoke more modestly, too, readily acknowledging former errors and generally toning down its rhetoric. In luther v. borden (1849), it went so far as to promise judicial self-restraint regarding political questions, though that promise ought not to be confused with a hard-and-fast doctrine, which it clearly was not. Although the Court avoided stridency, it did not claim less power. The constitutional nationalism which the Taney Court reduced was not the same as the judicial nationalism which it actually extended. In short, the Court did things differently, but it did not surrender its power to do them. Although the Bridge case conceded new power to state legislatures and promised judicial restraint, the Court still monitored the federal system in corporate contract questions. The Court's commerce clause decisions worked to make the federal system more flexible. But in every case from Miln through Cooley, the Court retained the right to judge—and often, as in Cooley, by vague constitutional standards. This judicial authority, moreover, was used throughout the Taney period to expand the jurisdiction of the Court, often at the expense of state judiciaries which the Court claimed to respect.

Never was federal judicial expansion more striking than in swift v. tyson (1842), a commercial law case which arose under federal diversity jurisdiction. For a unanimous Court, Story held that, in matters of general commercial law, state "laws," which section 34 of the judiciary act of 1789 obliged the federal courts to follow in diversity cases, did not include state court decisions. In the absence of controlling state statutes, then, federal courts were free to apply general principles of commercial law, which they proceeded to do until Swift was overruled in 1938. Almost as expansive was Taney's opinion in propeller genesee chief v. fitzhugh (1851), which bluntly overturned the tidewater limitation imposed by the Marshall Court and extended the admiralty jurisdiction of the federal courts over the vast network of inland lakes and rivers.

Both these decisions were part of the Court's consistent effort to establish a system of uniform commercial principles conducive to the interstate operation of business. Both paved the way for federal judicial intrusion into state judicial authority. When state courts objected to this judicial nationalism, as the Wisconsin Supreme Court did in the slave rendition case of ableman v. booth (1859), Jacksonian Roger Taney put them in their place with a ringing defense of federal judicial authority that was every bit as unyielding as was Federalist John Marshall's in cohens v. virginia (1821). Ableman was an assertion of power that would have astonished conservative critics in 1837 who predicted the imminent decline and fall of the Court. Instead, by 1850 the Taney Court was even more popular than the Marshall Court had been and the Chief Justice was praised by men of all political persuasions. All this would change when the Court confronted the issue of slavery.

Adjudicating the constitutional position of slavery fell mainly to the Taney Court; there was no escape. Slavery was the foundation of the southern economy, a source of property worth billions, a social institution that shaped the cultural values of an entire section and the politics of the whole nation. Moreover, it was an integral part of the Constitution, which the Court had to interpret. At the same time, it was, of all the issues facing the antebellum Court, least amenable to a rational legal solution—and in this respect, it foreshadowed social issues like abortion and affirmative action which have troubled the contemporary Court. No other single factor so much accounts for the divisions on the Taney Court or its inability to clearly demarcate power in the federal system.

Given the slavery question's explosive nature, the Justices not surprisingly tried to avoid confronting it directly. Thus the obfuscation in Groves v. Slaughter (1841), where the issue was whether a provision in the Mississippi Constitution prohibiting the importation of slaves for sale after 1833 illegally encroached upon federal power over interstate commerce. The Court circumvented this issue by ruling that the state constitutional clause in question was not self-activating—a position that, while avoiding trouble for the Court, also guaranteed the collection of millions of dollars of outstanding debts owed slave traders and in effect put the judicial seal of approval on the interstate slave trade. The Court also dodged the substantive issue in strader v. graham (1851), which raised the question whether slaves who resided in Kentucky had become free by virtue of their temporary residence in the free state of Ohio. The Court refused jurisdiction on the ground that Kentucky law reasserted itself over the slaves on their return, so that no federal question was involved.

Where the substantive question could not be sidestepped, the Court aimed to decide cases on narrow grounds and in such a way as to please both North and South. Thus in The Amistad (1841), Justice Story ruled that Africans on their way to enslavement who escaped their Spanish captors were free by virtue of principles of international law and a close reading of the Treaty of 1794 with Spain. Extremists in neither section were pleased. Even less were they content with Story's efforts to juggle sectional differences, morality, and objective adjudication in prigg v. pennsylvania (1842). There the question was whether and to what extent states were allowed to pass personal liberty laws protecting the rights of free Negroes in rendition cases. The South was pleased when Story declared the Pennsylvania liberty law of 1826 to be a violation of the constitutional and statutory obligation to return fugitive slaves. He went on to say, with his eye on northern opinion (and with doubtful support from a majority on the Court), that the power over fugitives belonged exclusively to the federal government and that states were not obliged to cooperate in their return. The decision encouraged northern states to pass personal liberty laws but also necessitated the more stringent federal fugitive slave law of 1850. Both developments fueled sectional conflict. (See fugitive slavery.)

The Court's strategy of avoidance aimed to keep slavery on the state level where the Constitution had put it, but the slavery question would not stay put. What brought it forth politically and legally as a national question was slavery in the territories, a problem which confronted the Court and the nation in Dred Scott. The nominal issue in that famous case was whether a Negro slave named Scott, who had resided in the free state of Illinois and the free territory of Minnesota (made free by the missouri compromise of 1820) and who returned to the slave state of Missouri, could sue in the federal courts. Behind this jurisdictional issue lay the explosive political question of whether Congress could prohibit slavery in the territories, or to put it another way, whether the Constitution guaranteed it there. The future of slavery itself was on the line.

The first inclination of the Justices when they confronted the case early in 1856 was to continue the strategy of avoidance by applying Strader v. Graham (1851); by that precedent Scott would have become a slave on his return to Missouri with no right to sue in the federal courts. This compromise was abandoned: in part because of pressure from President james buchanan and Congress; in part because northern Justices McLean and Curtis planned to confront the whole issue in dissent; in part because the proslave, pro-South wing of the Court (led by Taney and Wayne) wanted to silence the abolitionists by putting the Constitution itself behind slavery in the territories; in part because the Justices pridefully believed they could put the troublesome question to rest and save the Union.

Taney's was the majority opinion so far as one could be gleaned from the cacophony of separate opinions and dissents. It was totally prosouthern and brutally racist: Scott could not sue in the federal courts because he was not a citizen of the United States. He was not a citizen because national citizenship followed state citizenship, and in 1787 the states had looked upon blacks as racially inferior (which the states in fact did) and unqualified for citizenship (which several states did not). Scott's argument that he was free by virtue of residence in a free state was wrong, said Taney, because of Strader (which had been relied upon by the Supreme Court of Missouri); Scott's argument that residence in a free territory made him free carried no weight because Congress had no authority to prohibit slavery in the territories—an assertion that ignored seventy years of constitutional practice and permitted Taney to set forth the substantive due process theory of the Fifth Amendment against the taking of property. Scott was still a slave. Congress could not prohibit slavery in the territories, because the Constitution guaranteed it there; neither, as the creatures of Congress, could territorial legislatures prohibit slavery as claimed by proponents of the doctrine of popular sovereignty. Taney's Constitution was for whites only.

Instead of saving the Union the decision brought it closer to civil war and put the Court itself in jeopardy. In effect, the decision outlawed the basic principle of the Republican party (opposition to the extension of slavery in the territories), forcing that party to denounce the Court. The Democratic party, the best hope for political compromise, was now split between a southern wing (which in 1860 chose the certainty of Dred Scott over the vagueness of popular sovereignty) and northern antislavery forces who, if they did not defect to the Republicans, went down to defeat with stephen douglas and popular sovereignty. Sectional hatred intensified and the machinery of political compromise was seriously undercut—along with the prestige of the Court. From its peak of popularity in 1850 the Taney Court descended to an all-time low. After secession it served only the section of the Union that ignored Dred Scott entirely, condemned the Court as a tool of southern expansionism, and looked upon the Chief Justice as an arch-traitor to liberty and national union.

Fortunately, these disabilities were not permanent. Northern hatred focused less on the Court as an institution and more on the particular decision of Dred Scott, which was obliterated by the thirteenth and fourteenth amendments. Dred Scott seemed less important, too, after President Lincoln "Republicanized" the Court with new appointments (five, including a new Chief Justice who had been an abolitionist). More important, the Court brought itself into harmony with the northern war effort by doing what the Supreme Court has always done in wartime: deferring to the political branches of government and bending law to military necessity. Sometimes the Court deferred by acting (as in the prize cases of 1863 where it permitted the President to exercise war powers and still not recognize the belligerent status of the Confederacy) and sometimes it deferred by not acting (as when it refused to interfere with the broad use of martial law during the war).

The Taney Court not only survived but it also salvaged its essential powers—and with time even a grudging respect from historians. The memory of Dred Scott could not be totally exorcised, of course, but it diminished along with the idealism of the war years and with the recognition that the racism of the opinion was shared by a majority of white Americans. In any case, the reform accomplishments of the Taney Court helped to balance the reactionary ones. Its modest style of judging fit the new democratic age. Through its decisions ran a new appreciation of the democratic nature and reform potential of state action and a tacit recognition as well of the growing maturity of legislative government. The Court's pragmatic federalism, while it could support the evil of slavery, also embodied a tradition of cultural pluralism, local responsibility, and suspicion of power. This it did without destroying the foundations of constitutional nationalism established by the Marshall Court. Change is the essence of American experience. The Taney Court accepted this irresistible premise and accommodated the Constitution to it. The adjustment was often untidy, but the Court's preference for process over substance looked to the modern age and prefigured the main direction of American constitutional law.

R. Kent Newmyer
(1986)

Bibliography

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Fehrenbacher, Don E. 1978 The Dred Scott Case: Its Significance in American Law and Politics. New York: Oxford University Press.

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Swisher, Carl B. 1974 The Taney Period, 1836–1864. Volume Vof The Oliver Wendell Holmes Devise History of the Supreme Court of the United States. New York: Macmillan.

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